NZ Abortion Access Back in the Dock

  

What if you had a way of providing an essential medical service that was safer, cheaper, less traumatic for patients, and meant they didn’t have to travel more than an hour each way to access it? Well, if it was for anything other than abortion, you’d be its champion. But this is abortion, and now the pioneering Tauranga Family Planning clinic, which has been providing early medication abortions in the Bay of Plenty since 2013, is under threat by anti-abortion court action that could worsen New Zealand’s already poor record on abortion access.

            The court action by the Catholic anti-choice group Right to Life is a direct result of our now 38-year-old abortion laws, which criminalise abortion and continue to block the use of newer and better ways of providing it. And it’s not the first time our backward laws have been recruited for the purpose of banning or restricting abortion access. A 7-year case by the same group seeking to wind back access went all the way to the Supreme Court, where in 2012 Right to Life lost by a frighteningly narrow 2-3 ruling. The fact that abortion access in New Zealand was one justice away from being severely restricted in 2012 should have been a wake-up call that our criminalised abortion laws need urgent change. But, again, this is abortion and if there’s one thing (almost) all politicians agree on, it’s that they’d rather do nothing than wade into a debate about reproductive justice. 

            So nothing happened, and so here we are again, with abortion access back in the dock. The implications of this case are significant (more on that below), and underscore the urgent need for supporters of reproductive choice and access to press politicians to take action to give our fragile abortion access a secure foundation.

 MPs have been on notice for decades that our laws are barely able to function: the Abortion Supervisory Committee has said so, the courts have said so, even the United Nations has said so. And still there is silence. To quote Prime Minister John Key during the 2014 election campaign: “I’m opposed to changing the law … I think the law broadly works.” And that’s been the standard line from the abortion liberals in Parliament for decades now – apart, that is, from a few stand-outs in the Green Party, which became the first-ever major party to adopt a pro-choice platform in 2014, some impressive Young Labour activism and a bold stand in 2010 by former Labour MP Steve Chadwick.

Importing U.S.-Style TRAP Laws

            The new case at hand was publicly announced on Sunday, when Right to Life said it was headed to the High Court to challenge the Abortion Supervisory Committee over granting a licence to Family Planning to provide early medication abortions at its Tauranga clinic. (Family Planning is only an “interested party” in this case, and it will be the Crown Law Office that plays defence.)

Though we haven’t yet seen Right to Life’s formal arguments, the media release and RTL’s previous posts about the Tauranga clinic indicate this effort is straight from the American TRAP law playbook (Targeted Regulation of Abortion Providers). In this case, RTL plans to argue that our law requires any institution providing abortion have “adequate surgical and other facilities” for the performance of safe abortions. As even RTL acknowledges, when the 1977 Contraception Sterilisation and Abortion Act was enacted, there were no medical abortions. Since Family Planning’s Tauranga clinic isn’t a hospital or a surgical facility, I’m assuming RTL will claim it doesn’t have the “adequate surgical and other facilities” needed to hold an abortion licence under the law so the ASC shouldn’t have given it one. (A hearing will take place at the High Court in Wellington on 2 June starting at 10 a.m. According to the court, it should be open to the public.)  

It’s important to explain a bit about what early medication abortion is. At the Tauranga clinic, medication abortions are available only up until 9 weeks of pregnancy (63 days), and involve bringing on a miscarriage using two medications usually taken 48 hours apart, Mifegyne or Mifepristone (formerly known as RU486) and Misoprostol (also known as Cytotec). You can read more here from Family Planning itself about what an early medication abortion entails. It’s also worth a reminder that people seeking abortions in the Bay of Plenty – as elsewhere – must still meet the requirements of our criminal statutes: Before you can get an abortion, two doctors (certifying consultants) must agree that your case meets one of the half dozen criteria listed in the Crimes Act. 

Not what abortion "on demand" looks like, folks

In the recent discussion about abortion (and big ups to the Greens for getting it on the political agenda), several commentators who identify as pro-choice have stated sentiments to the effect that we have abortion on demand now.  Except that we really clearly don't.

Getting an ingrown toe nail cut out is a medical procedure you can get on demand.  You don't need anyone else's permission, you just need to have an ingrown toe nail and find someone who can cut it out to do so for you.  The same with getting moles removed, whether possibly cancerous or not, having most forms of plastic surgery like rhinoplasty (nose job) or breast implants.

But to get an abortion, be it medical (ie by pills at an early stage of pregnancy) or surgical, two different people have to give their permission, after seeing your own doctor.  Those people have to also be certified to give you that permission.  For people with resources who are seeking terminations in Wellington or Auckland this probably isn't a big deal, and I can understand how some might think, from the outside, that it is basically abortion on demand (although to the best of my knowledge no definition of on demand includes requiring permission from other people).  However that is a) not what the law says and b) not what the practice is.

To use a rather silly example, say that getting a can of Coca Cola (Symbol of the Free West) worked the same way as access to abortion.  If Coke is on demand then you can rock up to an appropriate outlet and get one, no one else gets to say yes or no as long as you pay your $2.

If you could only get Coke in the same way as people can access abortion under NZ law then it would look something like this:

1.  Find one of the limited number of dairies that offer Coca Cola cans.  It may be in an out of the way place, there may be protesters outside (with signs reading "Coke promotes a culture of DEATH").

2.  Once you've found a Coke-supplying dairy, seek and gain the permission of a person who works there and has certification.  The certifying dairy worker will need to approve that you can have the Coca Cola for one or more of a small number of reasons that are outlined in law; most likely "thirst relief" which is found to be the reason for 98% of Coke purchases.  You may not be thirsty right now, but you know you are going to be thirsty in the future, but you will need to carefully convince the certifying dairy worker that you should have the Coca Cola for "thirst relief" now.  Other allowable reasons include high risk of diabetic coma without it.

3.  You'll then need to go through Step 2 again with another certifying dairy worker.  Hopefully there is more than one at that dairy, but if there isn't then you will have to go somewhere else.

4.  It's likely you will then be referred to another dairy, which will actually have the can of Coke.  You'll need to get an appointment there.  Again it may be in an out of the way place, there may be protesters outside (with signs reading "Every Coke Kills a Living Thirst").

5.  When you get to the dairy for your can of Coke you'll possibly be required to go through counselling to consider the consequences of drinking a can of Coca Cola and talk through other options, such as water, milk or going through with being thirsty.

6.  You will then have to undergo a dietary examination, to assess precisely how thirsty you are, any other dietary influences that may lead to complications when you drink the Coke, a full history of your drinking history, and examine your suitability for drinking Coca Cola at this time.  You'll be given advice on whether the Coke is a good idea or not.  Likely there will also be a discussion about planning your future liquid intake so that you can avoid thirst again in the future.

7.  Finally you get your can of Coca Cola.  It's possible this will happen on the same day as the counselling and examination, but maybe not.  Enjoy.

Imagine living in a small town with only one dairy, which didn't have Coke.  The nearest bigger town also didn't have Coca Cola, and you'd have to fly or drive quite a way to get some, possibly taking time off work to do so and at some personal expense in regard to travel costs.  That'd suck.

And that would not be availability on demand.

Abortion is NOT available on demand in Aotearoa New Zealand.  In my opinion to continue to claim that it is does not help get the law or the practice changed to make abortion more available.  It's not defacto on demand, it's not almost on demand.  It is only allowed with the permission of two other people, neither of whom is the pregnant person (although their consent gets the ball rolling), and only for a limited list of reasons outlined by a law set over 30 years ago.

In my opinion the best place to get practical information on accessing abortion services in Aotearoa New Zealand is abortion.gen.nz.

Edited to Add:  After I wrote this, but before it was scheduled to post, the Sunday Star Times published this article, including one person recounting her experience of accessing abortion under the current law.

Abortion on the Agenda: Thanks Greens!

Just before I start in on the momentous news of the Greens’ policy on abortion, a tiny bit of history. As many of you know, our current laws, which were passed in 1977, place abortion firmly in the Crimes Act, and were based on a 400-plus page Royal Commission report. I spent a whole chapter in my book “Fighting to Choose” pulling it to bits, in between choking on my coffee, but here I’ll just pick out one bit that I found particularly gob-smacking, and that I think has relevance to the 2014 Green-inspired debate over abortion.

The report (and subsequently the law) ended up deciding which reasons for having an abortion would be legal (not criminal) and which would not. (You can look them up in the Act itself  if you’re interested, go to section 187(A)1.) The Royal Commissioners had to do a lot of fancy footwork to pull this off (and tripped over themselves numerous times) but one thing they did not do was ever find out the actual reasons people have abortions. Here, I quote directly from the report: “In New Zealand no authoritative study has ever been made of the reasons why women seek abortions.” (p. 201)

Just wow! You’re making a criminal law about something you don’t know the first thing about. If that doesn’t simply say: Sorry, no moral agency for you. No having your very own personal reasons that relate to your very own life. We, MP’s with a “conscience vote”, will decide what reasons are acceptable, even though we actually have absolutely no real knowledge of why any of you do it. (Latest scare-mongering from the antis is that at least some of us are doing it because we don’t want to have babies with female sex organs. They want to outlaw something – sex selective abortion – that we have no evidence is even happening. More on that below.)

So far as I know, the “no authoritative study” of the reasons is still the case. They still don’t know, but still want to say what the reasons “should” be, by law. (Reminder: the Royal Commission decided against recommending that rape be a ground for abortion because women would lie about being raped. A majority of 1977 MPs agreed.)

Which brings me (I know, when was I going to get here?) to the Green Party policy, and why it’s a big deal. It’s basically saying (my words, not theirs) that the Greens believe the state should not treat abortion as a criminal matter that, for the vast majority of us, can only be excused if we can get two certifying consultants to state that we are not mentally sound enough to go through with our pregnancy. And that is what the antis are busy calling “extremist”. Under the policy, abortion care will remain regulated, as every other medical procedure is – it’s not like we have a medical Wild West out there for health care that isn’t in the Crimes Act – i.e. pretty much everything else.

But aside from that really obvious ways it’s a big deal, there are lots of less obvious ones. A couple: